FRAMPTON & SAXON

[2012] FamCA 1069

FAMILY COURT OF AUSTRALIA

FRAMPTON & SAXON [2012] FamCA 1069

FAMILY LAW - CHILDREN – Supervised time – Where the contemplated supervisors of the Father’s time with the children are unavailable – Where the Independent Children’s Lawyer is satisfied that the person nominated by the Father as supervisor would be suitable and capable –  Order to give effect to Independent Children’s Lawyer’s nominated supervisor  

Family Law Act 1975 (Cth)

APPLICANT: Mr Frampton

RESPONDENT: Ms Saxon

INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

FILE NUMBER: BRC 3059 of 2010

DATE DELIVERED: 18 December 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 18 December 2012

REPRESENTATION

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

Orders Until Further Order

1. For the purpose of the Orders made on 26 November 2012, and in particular for paragraph 16(a) of those Orders, Mr B be the supervisor for the time provided for in those Orders. 

Orders by Consent

1. Paragraph 20 of the Orders made on 26 November 2012 be amended to read, “the Independent Children’s Lawyer have liberty to apply on short notice should the Mother or the Father not present herself or himself and/or the children to [Mr C] in accordance with this order or as directed by him.”

IT IS NOTED that publication of this judgment by this Court under the pseudonym Saxon & Frampton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3059 of 2010

Mr Frampton

Applicant

And

Ms Saxon

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter consent parenting orders and property orders were made on 26 November 2012. Relevantly, those Orders provided in paragraph 16 for the parents to do all acts and sign all documents necessary to facilitate the use of the D Town Contact Centre and share equally the costs of that Centre but that under paragraph (a) of that Order, pending the availability of that Contact Centre, time was to be supervised by Mr and/or Ms E or “such other person as agreed by the Independent Children’s Lawyer”. The Es are no longer available to supervise the time as contemplated by the Orders. It is said that the availability of the D Town Contact Centre may be three months or longer.

2. The subject children, F, born in August 2003, and G, born in March 2005, are independently represented in these proceedings by an Independent Children’s Lawyer appointed under the Act and with the statutory obligations that are cast upon an Independent Children’s Lawyer under the Act. Before me, on today’s mention, is an affidavit of the Independent Children’s Lawyer, Barbara Fox. I should note that she was appointed the Independent Children’s Lawyer of all five children, namely H, born in June 2000, J, born in June 2000, K, born in June 2000, those triplets not being the biological children of the Father, as well as the children I have already referred to.

3. Obviously this matter has a history which is not necessary for me to descend into for today’s purposes. Relevantly, the Orders that were made on 26 November 2012 by consent superseded all previous parenting orders in that paragraph 9 discharged all previous parenting orders.

4. The affidavit of Ms Fox, today, sets out the history since those Orders were made in terms of the unavailability now of the contemplated supervisors, the Es, and the attempts to obtain an alternate supervisor. In the event, on or about 10 December, the Father nominated Mr B to be the supervisor and the Independent Children’s Lawyer has spoken with Mr B, having outlined the role of a supervisor, and has satisfied herself that Mr B would be suitable and would be capable of acting independently of the parties and in the best interests of the children in undertaking that supervision.

5. I should note at this point that the periods of time are relevantly brief, that is, two and a half hours in respect of G, the youngest child, who is now seven and a half years of age, and F, who is now nine.

6. The Mother, who belatedly appeared today representing herself, agitates objections on a number of levels. First, she complains that the Independent Children’s Lawyer displays bias. Second, that her consent to the Orders of the 26 November were influenced by what she has described as unreasonable pressure by the solicitor then acting for her. And third, she contends that the Father has failed to comply in several respects with the Orders of 26 November 2012 albeit focusing mainly on the property Orders. As I have explained to the Mother in terms of enforcing the subject Orders she can bring an application for contravention which she says she intends to do.

7. The priority so far as today’s purposes is concerned is to restore a position where the Father can spend some time with the subject children in a supervised setting, and in circumstances where an Independent Children’s Lawyer is involved with the duties and responsibilities under the Act and recommends a position to the Court, that obviously has to be given weight by the Court.

8. Most importantly though, the Orders that were agreed to by the parties contemplated that the Independent Children’s Lawyer would be the relevant person to agree ultimately on the supervisor in the event that the Es were unavailable as they are now. In all the circumstances, I am satisfied therefore, that Mr B be nominated as the relevant supervisor for the purpose of paragraph 16(a) of the Orders and more generally, I explained to the Mother that it is open to her to identify other suitable supervisors more to her liking and if she can convince the Independent Children’s Lawyer of their aptitude and availability, so be it. Pending that however, I am satisfied that the proposal of the Independent Children’s Lawyer is reasonable in all the circumstances and most particularly accords with the best interests of the children, having the opportunity of having some relationship with their Father, albeit in a supervised setting.

9. For those reasons I therefore Order that for the purpose of the Orders made on 26 November 2012 and in particular for paragraph 16(a) of those Orders, until further Order, Mr B be the supervisor for the time provided for in those Orders.  

10. By consent, paragraph 20 of the orders made on 26 November 2012, will be amended to read:

    the Independent Children’s Lawyer have liberty to apply on short notice should the Mother or the Father not present herself or himself and/or to Mr C in accordance with this Order or as directed by him.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 18 December 2012.

Associate:  PP

Date:  19 December 2012